SZHJS v Minister for Immigration and Multicultural Affairs [2006] FCA 1429

FEDERAL COURT OF AUSTRALIA

SZHJS v Minister for Immigration and Multicultural Affairs [2006] FCA 1429

Migration Act 1958 (Cth) s 424A

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 SZHJS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1316 OF 2006

JESSUP J

30 OCTOBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1316 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHJS

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 30 OCTOBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1316 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHJS

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 3 November 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 19 June 2006 dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal made on 30 August 2005, and handed down on 22 September 2005. In that decision, the Tribunal affirmed a decision by a delegate of the respondent Minister on 22 April 2002 refusing the appellant's application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 30 October 2006 I dismissed the appeal with costs, and indicated that I would provide reasons later. These are my reasons. 2 The appellant is a citizen of Bangladesh. He arrived in Australia as a crew member on an Iranian ship in 2001, and on 19 July 2001 applied for a protection visa. His application was based upon a claimed fear of being persecuted by reason of his religion. He claimed to be a member of a minority religious sect referred to as the Ahmadi. It was said that this sect was oppressed by the mainstream Muslim community. A number of instances of actual oppression, including torture, were referred to by the appellant. He said that he had, in effect, been bullied out of college by Sunni Muslims, and that, after he had passed his examinations elsewhere subsequently, he had been unable to obtain employment due to his Ahmadi background. He said that he had become one of the vice presidents of the Ahmadi Muslim community in Jamalpur, and that he was a leading activist of that organisation who had led many religious processions on the street. This had made him a target of a group to which he referred as the "orthodox Muslim people". 3 There were produced to the Tribunal, on the appellant's behalf, two documents in support of his case that he was involved in, and a leader of, the Ahmadi Community: · What purported to be a membership certificate issued by the "Ahmedia Muslim Jamat, Bangladesh", stating that the appellant was a member of the "Ahmedia Muslim Jamat" and that his membership number was 112; · A letter in English purporting to be from Mohammad Zahidur Rahman, General Secretary, on the letterhead of the "Ahmodia Muslim Jama't, Bangladesh", stating that the appellant was a member of the "Kadeani" (i.e. Ahmadi) community, that he was a leader and a leading activist of the community, that he played a strong role against fundamentalist Sunnis and that, as a result, he was targeted by the mainstream Sunni Muslims, that he experienced opression and his life was threatened by Sunni Muslims, and that his life was not safe in Bangladesh. Having received these documents, on 23 May 2005 the Tribunal set in train inquiries of an organisation called the Ahmadiyya Muslim Association Australia Inc "as to whether they can confirm that the [appellant] is known to them as an Ahmadi from Bangladesh". By letter dated 29 May 2005, the vice president of that association replied to the effect that the association did not have any knowledge of the appellant. He invited the Tribunal to send the appellant's documents through to the association "then we can check the authenticity of letters presented to the Tribunal". By letter dated 2 June 2005 (which was not itself in evidence, but which is referred to otherwise), the Tribunal apparently sent the documents to the association, with a view to having their authenticity verified, or otherwise. 4 It was in that state of things that the hearing occurred before the Tribunal on 1 July 2005. In its decision handed down on 22 September 2005, the Tribunal said: I noted that the Ahmadiyya Association was still checking the documents he had produced from Bangladesh and that the Tribunal would write to the [appellant] when the results of these inquiries were known. I put to the [appellant], however, that on the basis of his answers at the hearing, it would be difficult for me to accept that he had ever been involved with the Ahmadi sect at all.